Shares
SOUTH CAROLINA ELECTRIC & GAS COMPANY
__ % Cumulative Preferred Stock, Par Value $100 Per Share
UNDERWRITING AGREEMENT
_________________ __, 1997
Gentlemen:
South Carolina Electric & Gas Company, a South Carolina
corporation (the "Company"), proposes to sell an aggregate of
shares of the Company's __% Cumulative Preferred Stock,
par value $100 per share (the "Shares"), to you and to the other
underwriters named in Schedule I (collectively, the
"Underwriters"), for whom you are acting as representative
(collectively, the "Representative"). The initial public offering
price per share for the Shares shall be $______, and the purchase
price per share for the Shares to be paid by the several
Underwriters shall be $________ (representing an amount equal to
the initial public offering price less $_______ per share).
The Company confirms as follows its agreements with the
Representative and the several other Underwriters.
1.Agreement to Sell and Purchase. On the basis of the
representations, warranties and agreements of the Company herein
contained and subject to all the terms and conditions of this
Agreement, the Company agrees to sell to each Underwriter named
below, and each Underwriter, severally and not jointly, agrees to
purchase from the Company at the purchase price per share for the
Shares, the number of Shares set forth opposite the name of such
Underwriter in Schedule I.
2.Delivery and Payment. Delivery of the Shares shall
be made to the Representative for the accounts of the Underwriters
against payment of the purchase price by wire transfer of
immediately available (same day) funds to the Company at the office
of Reid & Priest LLP, 40 West 57th Street, New York, New York
10019. Such payments shall be made at 10:00 a.m., New York City
time, on the fourth business day following the date of this
Agreement or at such time on such other date, not later than seven
business days after the date of this Agreement, as may be agreed
upon by the Company and the Representative (such date is
hereinafter referred to as the "Closing Date").
A certificate evidencing the Shares shall be in
definitive form and shall be registered in the name of Cede & Co.
and deposited with The Depository Trust Company in book entry form
at least two business days prior to the Closing Date. The Company
agrees to make such certificate available for inspection at least
twenty-four hours prior to the Closing Date.
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3.Representations and Warranties of the Company. The
Company represents, warrants and covenants to each Underwriter
that:
(a)The Company meets the requirements for use of Form S-3 and
a registration statement (Registration No. ____________) on Form S-
3 relating to the Shares, including a prospectus and such
amendments to such registration statement as may have been required
to the date of this Agreement, has been prepared by the Company
under the provisions of the Securities Act of 1933, as amended (the
"Act"), and the rules and regulations (collectively referred to as
the "Rules and Regulations") of the Securities and Exchange
Commission (the "Commission") thereunder, and has been filed with
and declared effective by the Commission. Copies of such
registration statement and any amendments thereto have been
delivered to the Representative. The Company will file with or
mail for filing to the Commission a supplemental prospectus
relating to the Shares pursuant to Rule 424 under the Act. The
term "Registration Statement" means the registration statement as
amended at the time it became effective (the "Effective Date") and
as it may be amended as of the date of this Agreement, and such
supplemented prospectus, including all documents incorporated
therein, is hereafter referred to as the "Prospectus."
(b)When the Registration Statement became effective and at
all times subsequent to and including the Closing Date: (i) the
Registration Statement and Prospectus and any post-effective
amendments or supplements thereto contained and will contain all
statements and information which are required to be stated therein
by the Act and the Rules and Regulations, and, in all material
respects, conformed and will conform to the requirements thereof
and (ii) neither the Registration Statement nor the Prospectus nor
any post-effective amendment or supplement thereto included or will
include any untrue statement of a material fact or omitted or will
omit to state any material fact required to be stated therein in or
necessary to make the statements therein not misleading. The
foregoing representations and warranties in this Section 3(b) do
not apply to any statements or omissions made in reliance on and in
conformity with information relating to any Underwriter furnished
in writing to the Company by the Representative specifically
for inclusion in the Registration Statement or the Prospectus or
any amendment or supplement thereto or to any information relating
to the book-entry system of payments and transfers of the Shares or
the depository therefor set forth under the caption "DESCRIPTION OF
NEW PREFERRED STOCK - Book-Entry Only" provided by The Depository
Trust Company. The Company has not distributed any offering
material in connection with the offering or sale of the Shares
other than the Registration Statement, the Prospectus or any other
materials, if any, permitted by the Act.
(c)The documents which are incorporated by reference in the
Prospectus or from which information is so incorporated by
reference, when they became effective or were filed with the
Commission, as the case may be, complied in all material respects
with the requirements of the Act or the Exchange Act, as
applicable, the rules and regulations of the Commission under the
Exchange Act (collectively referred to as the "Exchange Act Rules
and Regulations"); and any documents so filed and incorporated by
reference subsequent to the Effective Date shall, when they are
filed with the Commission, conform in all material respects with
the requirements of the Act and the Exchange Act, as applicable,
the Exchange Act Rules and Regulations and the Rules and
Regulations.
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(d)The Company is, and at the Closing Date will be, a
corporation duly organized, validly existing and in good standing
under the laws of its jurisdiction of incorporation. The Company
has and, at the Closing Date, will have, full power and authority
to conduct all the activities conducted by it, to own or lease all
the assets owned or leased by it and to conduct its business as
described in the Registration Statement and the Prospectus. The
Company is, and at the Closing Date, will be, duly licensed or
qualified to do business and in good standing as a foreign
corporation in each jurisdiction which requires licensing or
qualification.
(e)The outstanding shares of capital stock of the Company
have been, and the Shares to be issued and sold by the Company upon
such issuance will be, duly authorized, validly issued, fully paid
and nonassessable and will not be subject to any preemptive or
similar right. The description of the Shares in the Registration
Statement and the Prospectus is, and at the Closing Date will be,
complete and accurate in all material respects.
(f)The financial statements and schedules included or
incorporated by reference in the Registration Statement or the
Prospectus present fairly the consolidated financial condition of
the Company as of the respective dates thereof and the consolidated
results of operations and cash flows of the Company for the
respective periods covered thereby, all in conformity with
generally accepted accounting principles applied on a consistent
basis throughout the entire period involved, except as otherwise
disclosed in the Prospectus. No other financial statements or
schedules of the Company are required by the Act, the Exchange Act
or the Rules and Regulations to be included in the Registration
Statement or the Prospectus. Deloitte & Touche LLP (the
"Accountants"), who have reported on such year-end financial
statements and schedules, are independent accountants with respect
to the Company as required by the Act and the Rules and
Regulations. The statements included in the Registration Statement
with respect to the Accountants pursuant to Item 509 of Regulation
S-K of the Rules and Regulations are true and correct in all
material respects.
(g)The Company maintains a system of internal accounting
controls sufficient to provide reasonable assurance that
(i) transactions are executed in accordance with management's
general or specific authorization; (ii) transactions are recorded
as necessary to permit preparation of financial statements in
conformity with generally accepted accounting principles and to
maintain accountability for assets; (iii) access to assets is
permitted only in accordance with management's general or specific
authorization; and (iv) the recorded accountability for assets is
compared with existing assets at reasonable intervals and
appropriate action is taken with respect to any differences.
(h)Subsequent to the respective dates as of which information
is given in the Registration Statement and the Prospectus and prior
to the Closing Date, except as set forth in or contemplated by the
Registration Statement and the Prospectus, (i) there has not been
and will not have been any change in the capitalization of the
Company, except for shares of preferred stock of the Company which
are required to be purchased or redeemed by operation of mandatory
sinking fund provisions, nor shall there have been any change which
is reasonably expected to have a materially adverse effect on the
business, properties, business prospects, condition (financial or
otherwise) or results of operations of the Company, (ii) the
Company has not incurred nor will it incur any liabilities or
obligations, direct or contingent, nor has it entered into nor will
it enter into any transactions other than pursuant to this Agree-
ment and the transactions referred to herein, other than
liabilities, obligations, and transactions which are not
material to the business,
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properties, business prospects, condition (financial or otherwise)
or results of operations of the Company and (iii) the Company has
not and will not have paid or declared any dividends or other
distributions of any kind on any class of its capital stock, except
for regular quarterly dividends on the common stock of the Company
in such amount as may be determined by the Board of Directors of
the Company and on the preferred stock of the Company at stated
dividend rates.
(i)The Company does not own any shares of capital stock of a
"public utility company" or a "holding company" within the meaning
of the Public Utility Holding Company Act of 1935, as amended, and
is not a "holding company" or a "subsidiary" of a "registered
holding company" within the meaning of said Act. The Company has
no subsidiaries.
(j)Except as set forth in the Registration Statement and the
Prospectus, there are no actions, suits or proceedings pending or,
to the knowledge of the Company, threatened against or affecting
the Company or any of its respective officers in their capacity as
such, before or by any Federal or state court, commission,
regulatory body, administrative agency or other governmental body,
domestic or foreign, wherein an unfavorable ruling, decision or
finding would be reasonably expected to have a materially adverse
effect on the business, properties, business prospects, condition
(financial or otherwise) or results of operations of the Company.
(k)The Company has, and at the Closing Date, will have,
(i) all material governmental licenses, permits, consents, orders,
approvals and other authorizations necessary to carry on its
business as contemplated in the Prospectus, (ii) complied in all
material respects with all laws, regulations and orders applicable
to it or its business and (iii) performed in all material respects
the obligations required to be performed by it, and is not, and at
the Closing Date, will not be, in default, under any indenture,
mortgage, deed of trust, voting trust agreement, loan agreement,
bond, debenture, note agreement, lease, contract or other agreement
or instrument (collectively, a "contract or other agreement") to
which it is a party or by which its property is bound or affected,
except for such defaults as are not reasonably expected to have a
materially adverse effect on the business, properties, business
prospects, condition (financial or otherwise) or results of
operations of the Company. To the best knowledge of the Company,
no other party under any material contract or other agreement
to which it is a party is in default in any respect thereunder.
The Company is not presently and will not be at the Closing Date,
in violation of any provision of its articles of incorporation or
by-laws.
(l)No consent, approval, authorization or order of, or any
filing or declaration with, any court or governmental agency or
body is required for the consummation by the Company of the
transactions on its part herein contemplated, except such as have
been obtained under the Act or the Rules and Regulations, such as
may be required under state securities or Blue Sky laws or the by-
laws and rules of the National Association of Securities Dealers,
Inc. (the "NASD") in connection with the purchase and distribution
by the Underwriters of the Shares and such authorization as may be
required from the Public Service Commission of South Carolina (the
"PSC"), which has been obtained and is in full force and effect.
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(m)The Company has full corporate power and authority to
enter into this Agreement. This Agreement has been duly
authorized, executed and delivered by the Company and, assuming due
authorization, execution and delivery hereof by the Underwriters,
constitutes a valid and binding agreement of the Company
enforceable against the Company in accordance with the terms
hereof. The performance of this Agreement and the consummation of
the transactions contemplated hereby will not result in the
creation or imposition of any lien, charge or encumbrance upon any
of the assets of the Company pursuant to the terms or provisions
of, or result in a breach or violation of any of the terms or
provisions of, or constitute a default under, or give any other
party a right to terminate any of its obligations under, or result
in the acceleration of any obligation under, the articles of
incorporation or by-laws of the Company, any contract or other
agreement to which the Company is a party or by which the Company
or any of its properties is bound or affected, or violate or
conflict with any judgment, ruling, decree, order, statute, rule or
regulation of any court or other governmental agency or body
applicable to the business or properties of the Company except for
liens, charges, encumbrances, breaches, violations, defaults or
conflicts which are not reasonably expected to have a materially
adverse effect on the business, properties, business prospects,
condition (financial or otherwise) or results of operations of the
Company.
(n)The Company has good and marketable title to all
properties and assets described in the Prospectus as owned by it,
free and clear of all liens, charges, encumbrances or restrictions,
except such as are described in the Prospectus or are not material
to the business, properties, business prospects, condition
(financial or otherwise) or results of operations of the Company.
The Company has valid, subsisting and enforceable leases for the
properties described in the Prospectus as leased by it, with such
exceptions as are not material and do not materially interfere with
the use made and proposed to be made of such properties by the
Company.
(o)There is no document or contract of a character required
to be described in the Registration Statement or the Prospectus or
to be filed as an exhibit to the Registration Statement which is
not described or filed as required. All such contracts to which
the Company is a party have been duly authorized, executed and
delivered by the Company, constitute valid and binding agreements
of the Company, and are enforceable against the Company in
accordance with the terms thereof.
(p)No statement, representation, warranty or covenant made by
the Company in this Agreement or made in any certificate or
document required by this Agreement to be delivered to the
Representative was or will be, when made, inaccurate, untrue or
incorrect.
(q)Neither the Company nor any of its directors, officers or
controlling persons has taken, directly or indirectly, any action
intended, or which might reasonably be expected, to cause or
result, under the Act or otherwise, in, or which has constituted,
stabilization or manipulation of the price of any security of the
Company to facilitate the sale or resale of the Shares.
(r)No holder of securities of the Company has rights to the
registration of any securities of the Company because of the filing
of the Registration Statement.
(s)The Company is not involved in any material labor dispute
nor, to the knowledge of the Company, is any such dispute
threatened.
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(t)The Company owns, or is licensed or otherwise has the full
exclusive right to use, all material trademarks and trade names
which are used in or necessary for the conduct of its business as
described in the Prospectus. No claims have been asserted by any
person to the use of any such trademarks or trade names or
challenging or questioning the validity or effectiveness of any
such trademark or trade name. The use, in connection with the
business and operations of the Company, of such trademarks and
trade names does not, to the Company's knowledge, infringe on the
rights of any person.
(u)To the best of the Company's knowledge, the Company nor
any employee or agent of the Company has made any payment of funds
of the Company or received or retained any funds in violation of
any law, rule or regulation or of a character required to be
disclosed in the Prospectus.
(v)SCANA Corporation has duly registered with the Commission
as a transfer agent, within the meaning of the Exchange Act, with
respect to the Shares, and is in compliance with the Exchange Act
Rules and Regulations with respect to its activities as transfer
agent.
4.Agreements of the Company.
The Company agrees with the several Underwriters as follows:
(a)The Company will not, either prior to the Effective Date
or thereafter during such period as the Prospectus is required by
law to be delivered in connection with sales of the Shares by an
Underwriter or dealer, file any amendment or supplement to the
Registration Statement or the Prospectus, including the initial
supplement to the Prospectus which is filed pursuant to Rule 424
under the Act referred to in Section 3(a) hereof, unless a copy
thereof shall first have been submitted to the Representative
within a reasonable period of time prior to the filing thereof and
the Representative shall not have objected thereto in good faith.
(b)The Company will notify the Representative promptly, and
will confirm such advice in writing, (i) when any post-effective
amendment to the Registration Statement has become effective,
(ii) of any request by the Commission for amendments or supplements
to the Registration Statement or the Prospectus or for additional
information, (iii) of the issuance by the Commission of any stop
order suspending the effectiveness of the Registration Statement or
the initiation of any proceedings for that purpose or the threat
thereof, (iv) of the happening of any event during the period
mentioned in the second sentence of Section 4(e) that in the
judgment of the Company makes any statement made in the
Registration Statement or the Prospectus untrue in any material
respect or that requires the making of any changes in the
Registration Statement or the Prospectus in order to make the
statements therein, in light of the circumstances in which they are
made, not misleading and (v) of receipt by the Company or any
representative or attorney of the Company of any other
communication from the Commission relating to the Company, the
Registration Statement or the Prospectus. If at any time the
Commission shall issue any order suspending the effectiveness of
the Registration Statement, the Company will make every reasonable
effort to obtain the withdrawal of such order at the earliest
possible moment.
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(c)The Company will furnish to the Representative, without
charge, two signed copies of the Registration Statement and of any
post-effective amendment thereto, including financial statements
and schedules, and all exhibits thereto (including any document
filed under the Exchange Act and deemed to be incorporated by
reference into the Prospectus), and will furnish to the
Representative, without charge, for transmittal to each of the
other Underwriters, a copy of the Registration Statement and any
post-effective amendment thereto, including financial statements
and schedules but without exhibits.
(d)The Company will comply with all the provisions of any
undertakings contained in the Registration Statement.
(e)The Company will from time to time deliver to each of the
Underwriters, without charge, as many copies of the Prospectus or
any amendment or supplement thereto as the Representative may
reasonably request. The Company consents to the use of the
Prospectus or any amendment or supplement thereto by the several
Underwriters and by all dealers to which the Shares may be sold,
both in connection with the offering or sale of the Shares and for
any period of time thereafter during which the Prospectus is
required by law to be delivered in connection therewith. If during
such period of time any event shall occur which in the judgment of
the Company or counsel to the Underwriters should be set forth in
the Prospectus in order to make any statement therein, in the light
of the circumstances under which it was made, not misleading, or if
it is necessary to supplement or amend the Prospectus to comply
with law, the Company will forthwith prepare and duly file with the
Commission an appropriate supplement or amendment thereto, and will
deliver to each of the Underwriters, without charge, such number of
copies thereof as the Representative may reasonably request. The
Company shall not file any document under the Exchange Act before
the termination of the offering of the Shares by the Underwriters
if such document would be deemed to be incorporated by reference
into the Prospectus which is not approved by the Representative
after reasonable notice thereof.
(f)Prior to any public offering of the Shares by the
Underwriters, the Company will cooperate with the Representative
and counsel to the Underwriters in connection with the registration
or qualification of the Shares for offer and sale under the
securities or Blue Sky laws of such jurisdictions as the
Representative may request; provided, that in no event shall the
Company be obligated to qualify to do business in any jurisdiction
where it is not now so qualified or to take any action which would
subject it to general service of process in any jurisdiction where
it is not now so subject.
(g)During the period of five years commencing on the Closing
Date, the Company will furnish to the Representative and each other
Underwriter who may so request copies of such financial statements
and other periodic and special reports as the Company may from time
to time distribute generally to the holders of any class of its
capital stock, and will furnish to the Representative and each
other Underwriter who may so request a copy of each annual or other
report it shall be required to file with the Commission.
(h)The Company will make generally available to holders of
its Shares as soon as may be practicable but in no event later than
the last day of the fifteenth full calendar month following the
calendar quarter in which the Effective Date falls, an earning
statement (which need not be audited but shall be in reasonable
detail) for a period of 12 months ended commencing after the
Effective Date, and satisfying the provisions of Section 11(a) of
the Act (including Rule 158 of the Rules and Regulations).
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(i)Whether or not the transactions contemplated by this
Agreement are consummated or this Agreement is terminated, the
Company will pay, or reimburse if paid by the Representative, all
costs and expenses incident to the performance of the obligations
of the Company under this Agreement, including but not limited to
costs and expenses of or relating to (i) the preparation, printing
and filing of the Registration Statement and exhibits to it, the
Prospectus and any amendment or supplement to the Registration
Statement or the Prospectus, (ii) the preparation and delivery of
certificates representing the Shares, (iii) furnishing (including
costs of shipping and mailing) such copies of the Registration
Statement and the Prospectus and all amendments and supplements
thereto, as may be requested for use in connection with the
offering and sale of the Shares by the Underwriters or by dealers
to whom Shares may be sold, (iv) any filings required to be made by
the Underwriters with the NASD, and the fees, disbursements and
other charges of counsel for the Underwriters in connection there-
with, (v) the registration or qualification of the Shares for offer
and sale under the securities or Blue Sky laws of such jurisdic-
tions designated pursuant to Section 4(f), including the fees,
disbursements and other charges of counsel to the Underwriters in
connection therewith, and the preparation and printing of
preliminary, supplemental and final Blue Sky memoranda,
(vi) counsel to the Company and (vii) the transfer agent for the
Shares.
(j)If this Agreement shall be terminated by the Company
pursuant to any of the provisions hereof (otherwise than pursuant
to Section 8) or if for any reason the Company shall be unable to
perform its obligations hereunder, the Company will reimburse the
several Underwriters for all out-of-pocket expenses (including the
fees, disbursements and other charges of counsel to the
Underwriters) reasonably incurred by them in connection herewith.
(k)The Company will not at any time, directly or indirectly,
take any action intended, or which might reasonably be expected, to
cause or result in, or which will constitute, stabilization of the
price of the Shares to facilitate the sale or resale of any of the
Shares.
(l)The Company will apply the net proceeds from the offering
and sale of the Shares to be sold by the Company in the manner set
forth in the Prospectus under "USE OF PROCEEDS."
5.Conditions of the Obligations of the Underwriters.
The obligations of each Underwriter hereunder are subject to
the following conditions:
(a)All filings required by Rule 424 of the Rules and
Regulations shall have been made.
(b)(i) No stop order suspending the effectiveness of the
Registration Statement shall have been issued and no proceedings
for that purpose shall be pending or threatened by the Commission,
(ii) no order suspending the effectiveness of the Registration
Statement or the qualification or registration of the Shares under
the securities or Blue Sky laws of any jurisdiction shall be in
effect and no proceeding for such purpose shall be pending before
or threatened or contemplated by the Commission or the authorities
of any such jurisdiction, (iii) any request for additional
information on the part of the staff of the Commission or any such
authorities shall have been complied with to the satisfaction of
the staff of the Commission or such authorities and (iv) after the
date hereof no amendment or supplement to the Registration
Statement or the Prospectus shall have been filed unless a copy
thereof was first submitted to the Representative and the
Representative did not object thereto in good faith, and the
Representative shall have received certificates, dated the Closing
Date and signed by the Chief Executive Officer or the Chairman of
the Board of Directors of the Company and the Chief Financial
Officer of the Company (who may, as to proceedings threatened, rely
upon the best of their information and belief), to the effect of
clauses (i), (ii) and (iii).
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(c)Since the respective dates as of which information is
given in the Registration Statement and the Prospectus, (i) there
shall not have been a material adverse change in the general
affairs, business, business prospects, properties, management,
condition (financial or otherwise) or results of operations of the
Company, whether or not arising from transactions in the ordinary
course of business, in each case other than as set forth in or
contemplated by the Registration Statement and the Prospectus and
(ii) neither the Company shall have sustained any material loss or
interference with its business or properties from fire,
explosion, flood or other casualty, whether or not covered by
insurance, or from any labor dispute or any court or legislative or
other governmental action, order or decree, which is not set forth
in the Registration Statement and the Prospectus, if in the
judgment of the Representative any such development makes it
impracticable or inadvisable to consummate the sale and delivery of
the Shares by the Underwriters at the initial public offering
price.
(d)Since the respective dates as of which information is
given in the Registration Statement and the Prospectus, there shall
have been no litigation or other proceeding instituted against the
Company or any of its respective officers or directors in their
capacities as such, before or by any Federal, state or local court,
commission, regulatory body, administrative agency or other
governmental body, domestic or foreign, in which litigation or
proceeding an unfavorable ruling, decision or finding would be
reasonably expected to have a materially adverse effect on the
business, properties, business prospects, condition (financial or
otherwise) or results of operations of the Company.
(e)Each of the representations and warranties of the
Company contained herein shall be true and correct in all material
respects at the Closing Date and, as if made at the Closing Date
and all covenants and agreements herein contained to be performed
on the part of the Company and all conditions herein contained to
be fulfilled or complied with by the Company at or prior to the
Closing Date, shall have been duly performed, fulfilled or complied
with.
(f)The Representative shall have received opinions, dated
the Closing Date, and satisfactory in form and substance to counsel
for the Underwriters, from H. T. Arthur, Esquire, and McNair Law
Firm, P.A., counsel to the Company, in substantially the respective
forms set forth in Exhibit A and Exhibit B.
(g)The Representative shall have received opinions, dated
the Closing Date, from Reid & Priest LLP, counsel to the
Underwriters, with respect to the Registration Statement, the
Prospectus and this Agreement, which opinion shall be satisfactory
in all respects to the Representative.
(h)Concurrently with the execution and delivery of this
Agreement, the Accountants shall have furnished to the
Representative a letter, dated the date of its delivery, addressed
to the Representative and in form and substance satisfactory to the
Representative, confirming that they are independent accountants
with respect to the Company as required by the Act and the Rules
and Regulations and with respect to the financial and other
statistical and numerical information contained in the Registration
Statement or incorporated by reference therein. At the Closing
Date, the Accountants shall have furnished to the Representative a
letter, dated the date of its delivery, which shall confirm, on the
basis of a review in accordance with the procedures set forth in
the letter from the Accountants, that nothing has come to their
attention during the period from the date of the letter referred to
in the prior sentence to a date (specified in the letter) not more
than five days prior to the Closing Date which would require any
change in their letter dated the date hereof, if it were required
to be dated and delivered at the Closing Date.
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(i)Concurrently with the execution and delivery of this
Agreement and at the Closing Date, there shall be furnished to the
Representative an accurate certificate, dated the date of its
delivery, signed by each of the Chief Executive Officer and the
Chief Financial Officer of the Company, in form and substance
satisfactory to the Representative, to the effect that:
(i) Each person executing such
certificate has carefully examined the Registration Statement and
the Prospectus (including any documents filed under the Exchange
Act and deemed to be incorporated by reference into the Prospectus)
and (A) as of the date of such certificate, such documents are true
and correct in all material respects and do not omit to state a
material fact required to be stated therein or necessary in order
to make the statements therein not untrue or misleading and (B) in
the case of the certificate delivered at the Closing Date, since
the Effective Date no event has occurred as a result of which it
is necessary to amend or supplement the Prospectus in order to make
the statements therein not untrue or misleading in any material
respect and there has been no document required to be filed under
the Exchange Act and the Exchange Act Rules and Regulations that
upon such filing would be deemed to be incorporated by reference
into the Prospectus that has not been so filed.
(ii) Each of the representations and
warranties of the Company contained in this Agreement were, when
originally made, and are, at the time such certificate is
delivered, true and correct in all material respects.
(iii) Each of the covenants required
herein to be performed by the Company on or prior to the delivery
of such certificate has been duly, timely and fully performed and
each condition herein required to be complied with by the Company
on or prior to the date of such certificate has been duly, timely
and fully complied with.
(j)The Shares shall be qualified for sale in such states
as the Representative may reasonably request, each such
qualification shall be in effect and not subject to any stop order
or other proceeding on the Closing Date.
(k)The Company shall have furnished to the Representative
a certified copy of the Order of the PSC authorizing the issuance,
sale and delivery by the Company of the Shares.
(l)The Company shall have filed articles of amendment to
the articles of incorporation of the Company with the Office of the
Secretary of State of South Carolina as necessary to designate the
relative rights, preferences and limitations with respect to the
Shares.
(m)The Company shall have furnished to the Representative
such certificates, in addition to those specifically mentioned
herein, as the Representative may have reasonably requested as to
the accuracy and completeness at the Closing Date of any statement
in the Registration Statement or the Prospectus or any documents
filed under the Exchange Act and deemed to be incorporated by
reference into the Prospectus, as to the accuracy at the Closing
Date of the representations and warranties of the Company herein,
as to the performance by the Company of its obligations hereunder,
or as to the fulfillment of the conditions concurrent and precedent
to the obligations hereunder of the Representative.
25
6.Indemnification.
(a)The Company will indemnify and hold harmless each
Underwriter, the directors, officers, employees and agents of each
Underwriter and each person, if any, who controls each Underwriter
within the meaning of Section 15 of the Act or Section 20 of the
Exchange Act from and against any and all losses, claims,
liabilities, expenses and damages (including any and all
investigative, legal and other expenses reasonably incurred in
connection with, and any amount paid in settlement of, any action,
suit or proceeding or any claim asserted), to which they, or any of
them, may become subject under the Act, the Exchange Act or other
Federal or state statutory law or regulation, at common law or
otherwise, insofar as such losses, claims, liabilities, expenses or
damages arise out of or are based on any untrue statement or
alleged untrue statement of a material fact contained in the
Registration Statement or the Prospectus or any amendment or
supplement to the Registration Statement or the Prospectus or in
any documents filed under the Exchange Act and deemed to be
incorporated by reference into the Prospectus, or the omission or
alleged omission to state in such document a material fact required
to be stated in it or necessary to make the statements in it not
misleading, provided that the Company will not be liable to the
extent that such loss, claim, liability, expense or damage arises
from the sale of the Shares in the public offering to any person by
an Underwriter and is based on an untrue statement or omission or
alleged untrue statement or omission made in reliance on and in
conformity with information relating to any Underwriter furnished
in writing to the Company by the Representative on behalf of any
Underwriter expressly for inclusion in the Registration Statement
or the Prospectus. This indemnity agreement will be in addition to
any liability that the Company might otherwise have.
(b)Each Underwriter will indemnify and hold harmless the
Company, each person, if any, who controls the Company within the
meaning of Section 15 of the Act or Section 20 of the Exchange Act,
each director, officer, employee or agent of the Company to the
same extent as the foregoing indemnity from the Company to each
Underwriter, but only insofar as losses, claims, liabilities,
expenses or damages arise out of or are based on any untrue
statement or omission or alleged untrue statement or omission made
in reliance on and in conformity with information relating to any
Underwriter furnished in writing to the Company by the
Representative on behalf of such Underwriter expressly for use in
the Registration Statement or the Prospectus. This indemnity will
be in addition to any liability that each Underwriter might other-
wise have.
(c)Any party that proposes to assert the right to be
indemnified under this Section 6 will, promptly after receipt of
notice of any threatened claim or the commencement of any action
against such party in respect of which a claim is to be made
against an indemnifying party or parties under this Section 6,
notify each such indemnifying party of such threatened claim or the
commencement of such action, enclosing a copy of all papers served,
but the omission so to notify such indemnifying party will not
relieve it from any liability that it may have to any indemnified
party under the foregoing provisions of this Section 6 unless, and
only to the extent that, such omission results in actual prejudice
to the indemnifying party caused by such omission. If any such
action is brought against any indemnified party and it notifies the
indemnifying party of its commencement, the indemnifying party will
be entitled to participate in and, to the extent that it elects by
delivering written notice to the indemnified party promptly after
receiving notice of the commencement of the action from the
indemnified party, jointly with any other indemnifying party
similarly notified, to assume the defense of the action, with
counsel satisfactory to the indemnified party, and after notice
from the indemnifying party to the indemnified party of its
election to assume the defense, the indemnifying party will not be
liable to the indemnified party for any legal or other expenses
except as provided below and except for the reasonable costs of
investigation subsequently incurred by the indemnified party in
connection with the defense. The indemnified party will have the
right to employ its own counsel in any such action, but the fees,
expenses and other charges of such counsel will be at the
expense of such
26
indemnified party unless (i) the employment of counsel by the
indemnified party has been authorized in writing by the
indemnifying party, (ii) the indemnified party has reasonably
concluded (based on advice of counsel) that there may be legal
defenses available to it or other indemnified parties that are
different from or in addition to those available to the
indemnifying party, (iii) a conflict or potential conflict exists
(based on advice of counsel to the indemnified party) between the
indemnified party and the indemnifying party (in which case the
indemnifying party will not have the right to direct the defense of
such action on behalf of the indemnified party) or (iv) the
indemnifying party has not in fact employed counsel to assume the
defense of such action within a reasonable time after receiving
notice of the commencement of the action, in each of which cases
the reasonable fees, disbursements and other charges of counsel
will be at the expense of the indemnifying party or parties. It is
understood that the indemnifying party or parties shall not, in
connection with any proceeding or related proceedings in the same
jurisdiction, be liable for the reasonable fees, disbursements and
other charges of more than one separate firm admitted to practice
in such jurisdiction at any one time for all such indemnified party
or parties. All such fees, disbursements and other charges will be
reimbursed by the indemnifying party promptly as they are incurred.
An indemnifying party will not be liable for any settlement of any
action or claim effected without its written consent (which consent
will not be unreasonably withheld). Notwithstanding anything in
this Agreement to the contrary, if an indemnified party withholds
its consent to any settlement arranged by an indemnifying party
involving only the payment of money and the asserted liability is
ultimately determined to be greater than the amount of the arranged
settlement, the damages to be paid by the indemnifying party with
respect to such liability shall not exceed the amount of such
arranged settlement plus the amount of all expenses incurred
with respect to such asserted liability through the date on which
such arrangement of settlement was made and communicated to the
indemnified party, with the indemnified party being responsible for
all expenses incurred with respect to such asserted liability
thereafter.
(d)In order to provide for just and equitable contribution
in circumstances in which the indemnification provided for in the
foregoing paragraphs of this Section 6 is applicable in accordance
with its terms but for any reason is held to be unavailable from
the Company or the Underwriters, the Company and the Underwriters
will contribute to the total losses, claims, liabilities, expenses
and damages (including any investigative, legal and other expenses
reasonably incurred in connection with, and any amount paid in
settlement of, any action, suit or proceeding or any claim
asserted, but after deducting any contribution received by the
Company from persons other than the Underwriters, such as persons
who control the Company within the meaning of the Act, officers
of the Company who signed the Registration Statement and directors
of the Company, who also may be liable for contribution) to which
the Company and any one or more of the Underwriters may be subject
in such proportion as shall be appropriate to reflect the relative
benefits received by the Company on the one hand and the
Underwriters on the other. The relative benefits received by the
Company on the one hand and the Underwriters on the other shall be
deemed to be in the same proportion as the total net proceeds from
the offering (before deducting expenses) received by the Company
bear to the total underwriting discounts and commissions received
by the Underwriters, in each case as set forth in the table on the
cover page of the initial supplement to the Prospectus which is
filed pursuant to Rule 424 under the Act referred to in Section
3(a) hereof. If, but only if, the allocation provided by the
foregoing sentence is not permitted by applicable law, the
allocation of contribution shall be made in such proportion as is
appropriate to reflect not only the relative benefits referred to
in the foregoing sentence but also the relative fault of the
Company, on the one hand, and the Underwriters, on the other, with
respect to the statements or omissions which resulted in such loss,
claim, liability, expense or damage, or action in respect thereof,
as well as any other relevant equitable considerations with
respect to such offering. Such relative fault shall be
determined by
27
reference to whether the untrue or alleged untrue statement of a
material fact or omission or alleged omission to state a material
fact relates to information supplied by the Company or the
Representative on behalf of the Underwriters, the intent of the
parties and their relative knowledge, access to information and
opportunity to correct or prevent such statement or omission. The
Company and the Underwriters agree that it would not be just and
equitable if contributions pursuant to this Section 6(d) were to be
determined by pro rata allocation (even if the Underwriters were
treated as one entity for such purpose) or by any other method of
allocation which does not take into account the equitable
considerations referred to herein. The amount paid or payable by
an indemnified party as a result of the loss, claim, liability,
expense or damage, or action in respect thereof, referred to above
in this Section 6(d) shall be deemed to include, for purpose of
this Section 6(d), any legal or other expenses reasonably incurred
by such indemnified party in connection with investigating or
defending any such action or claim. Notwithstanding the provisions
of this Section 6(d), no Underwriter shall be required to
contribute any amount in excess of the underwriting discounts
received by it, and no person found guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the Act)
will be entitled to contribution from any person who was not guilty
of such fraudulent misrepresentation. The Underwriters'
obligations to contribute as provided in this Section 6(d) are
several in proportion to their respective underwriting obligations
and not joint. For purposes of this Section 6(d), any person who
controls a party to this Agreement within the meaning of the Act
will have the same rights to contribution as that party, and each
director, officer, agent or employee of the Company will have the
same rights to contribution as the Company, subject in each case to
the provisions hereof. Any party entitled to contribution,
promptly after receipt of notice of any threatened claim or the
commencement of any action against such party in respect of which
a claim for contribution may be made under this Section 6(d), will
notify any such party or parties from whom contribution may be
sought, but the omission so to notify will not relieve the party or
parties from whom contribution may be sought from any other
obligation it or they may have under this Section 6(d). No party
will be liable for contribution with respect to any action or claim
settled without its written consent (which consent will not be
unreasonably withheld).
(e)The indemnity and contribution agreements contained in
this Section 6 and the representations and warranties of the
Company contained in this Agreement shall remain operative and in
full force and effect regardless of (i) any investigation made by
or on behalf of the Underwriters, (ii) acceptance of any of the
Shares and payment therefor or (iii) any termination of this
Agreement.
7.Termination.
The obligations of the several Underwriters under this
Agreement may be terminated at any time on or prior to the Closing
Date by notice to the Company from the Representative, without
liability on the part of any Underwriter to the Company, if, prior
to delivery and payment for the Shares in the sole judgment of the
Representative, (a) trading in any of the equity securities of the
Company shall have been suspended by the Commission, by an exchange
that lists the Shares or by the National Association of Securities
Dealers Automated Quotation National Market System, (b) trading in
securities generally on the New York Stock Exchange shall have been
suspended or limited or minimum or maximum prices shall have been
generally established on such exchange, or additional material
governmental restrictions, not in force on the date of this
Agreement, shall have been imposed upon trading in securities
generally by such exchange or by order of the Commission or any
court or other governmental authority, (c) a general banking
moratorium shall have been declared by either Federal or New York
State authorities or (d) any material adverse change in the
financial or securities markets in the United States or
28
in political, financial or economic conditions in the United States
or any outbreak or material escalation of hostilities or
declaration by the United States of a national emergency or war or
other calamity or crisis shall have occurred the effect of any of
which is such as to make it, in the sole judgment of the
Representative, impracticable or inadvisable to market the Shares
on the terms and in the manner contemplated by the Prospectus.
8.Substitution of Underwriters.
If any one or more of the Underwriters shall fail or refuse to
purchase any of the Shares which it or they have agreed to purchase
hereunder, and the aggregate number of Shares which such defaulting
Underwriter or Underwriters agreed but failed or refused to
purchase is not more than one-tenth of the aggregate number of
Shares, the other Underwriters shall be obligated, severally, to
purchase the Shares which such defaulting Underwriter or Under-
writers agreed but failed or refused to purchase, in the
proportions which the number of Shares which they have respectively
agreed to purchase pursuant to Section 1 bears to the aggregate
number of Shares which all such non-defaulting Underwriters have so
agreed to purchase, or in such other proportions as the
Representative may specify; provided that in no event shall the
maximum number of Shares which any Underwriter has become obligated
to purchase pursuant to Section 1 be increased pursuant to this
Section 8 by more than one-ninth of the number of Shares agreed to
be purchased by such Underwriter without the prior written consent
of such Underwriter. If any Underwriter or Underwriters shall fail
or refuse to purchase any Shares and the aggregate number of Shares
which such defaulting Underwriter or Underwriters agreed but failed
or refused to purchase exceeds one-tenth of the aggregate number of
the Shares and arrangements satisfactory to the Representative and
the Company for the purchase of such Shares are not made within 48
hours after such default, this Agreement will terminate without
liability on the part of any non-defaulting Underwriter or the
Company for the purchase or sale of any Shares under this
Agreement. In any such case either the Representative or the
Company shall have the right to postpone the Closing Date, but in
no event for longer than seven days, in order that the required
changes, if any, in the Registration Statement and in the
Prospectus or in any other documents or arrangements may be
effected. Any action taken pursuant to this Section 8 shall not
relieve any defaulting Underwriter from liability in respect of any
default of such Underwriter under this Agreement.
9.Miscellaneous.
Notice given pursuant to any of the provisions of this
Agreement shall be in writing and, unless otherwise specified,
shall be mailed or delivered (a) if to the Company, at the office
of the Company, 1426 Main Street, Columbia, South Carolina 29201,
Attention: Corporate Secretary, or (b) if to the Underwriters, to
the Representative at the offices of PaineWebber Incorporated, 1285
Avenue of the Americas, New York, New York 10019, Attention:
Corporate Finance Department. Any such notice shall be effective
only upon receipt. Any notice under Section 7 or 8 may be made by
telex or telephone, but if so made shall be subsequently confirmed
in writing.
This Agreement has been and is made solely for the benefit of
the several Underwriters and the Company and of the controlling
persons, directors and officers referred to in Section 6, and their
respective successors and assigns, and no other person shall
acquire or have any right under or by virtue of this Agreement.
The term "successors and assigns" as used in this Agreement shall
not include a purchaser, as such purchaser, of Shares from any of
the several Underwriters.
THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
This Agreement may be signed in two or more counterparts with
the same effect as if the signatures thereto and hereto were upon
the same instrument.
29
In case any provision in this Agreement shall be invalid,
illegal or unenforceable, the validity, legality and enforceability
of the remaining provisions shall not in any way be affected or
impaired thereby.
The Company and the Underwriters each hereby irrevocably waive
any right they may have to a trial by jury in respect of any claim
based upon or arising out of this Agreement or the transactions
contemplated hereby.
Please confirm that the foregoing correctly sets forth the
agreement among the Company and the several Underwriters.
Very truly yours,
SOUTH CAROLINA ELECTRIC & GAS COMPANY
By: _______________________________
Title: _______________________________
Confirmed as of the date first
above mentioned:
By: _____________________________
Title: _____________________________
30
SCHEDULE I
UNDERWRITERS
Number of
Name of Shares
Underwriters to be Purchased
.............................
31
Exhibit A
Form of Opinion of
H. T. Arthur, Esq.,
Counsel to the Company
1. The Company is a corporation duly organized, validly
existing and in good standing under the laws of the jurisdiction of
its incorporation, is duly licensed or qualified to do business and
is in good standing as a foreign corporation under the laws of each
jurisdiction which requires such license or qualification wherein
it owns or leases material properties or conducts material
business, has full power and authority to conduct all the
activities conducted by it, to own or lease all the assets owned or
leased by it and to conduct its business as described in the
Registration Statement or the Prospectus. The Company has no
subsidiaries.
2. The outstanding shares of Common Stock have been, and
the Shares, when paid for by the Underwriters in accordance with
the terms of the Agreement, will be, duly authorized, validly
issued, fully paid and nonassessable and will not be subject to any
preemptive or similar right.
3. No consent, approval, authorization or order of, or
any filing or declaration with, any court or governmental agency or
body is required in connection with the consummation by the Company
of the transactions contemplated by the Agreement, except such as
have been obtained under the Act and the Rules and Regulations and
such as may be required under state securities or Blue Sky laws,
such as may be required by the by-laws and rules of the NASD in
connection with the purchase and distribution by the Underwriters
of the Shares and such authorization as may be required from the
Public Service Commission of the State of South Carolina, which has
been obtained and is in full force and effect. All references in
this opinion to the Agreement shall include the Price Determination
Agreement.
4. The authorized and outstanding capital stock of the
Company is as set forth in the Registration Statement and the
Prospectus except to the extent that additional shares of the
Company's preferred stock have been purchased or redeemed by
operation of mandatory sinking fund provisions. The description of
the Common Stock contained in the Prospectus conforms to the terms
thereof contained in the Company's articles of incorporation.
5. The Registration Statement and the Prospectus comply,
and any document incorporated by reference into the Prospectus at
the time it was filed complied, in all material respects as to form
with the requirements of the Act, the Exchange Act, the Exchange
Act Rules and Regulations and the Rules and Regulations (except
that I express no opinion as to financial statements, schedules and
other financial and statistical data contained in the Registration
Statement or the Prospectus or incorporated by reference therein).
6. I have participated in the preparation of the
Registration Statement and the Prospectus and nothing has come to
my attention which has caused me to believe that, both as of the
Effective Date and as of the Closing Date, the Registration State-
ment, or any amendment thereto, contained or contains any untrue
statement of a material fact or omitted or omits to state a
material fact required to be stated therein or necessary to
make the statements therein not misleading or that any Prospectus
or any amendment or supplement thereto including any documents
incorporated by reference into the
Prospectus, at the time such Prospectus was issued, at the time
any such amended or supplemented Prospectus was issued, and at the
Closing Date, contained or contains any untrue statement of a
material fact or omitted or omits to state a material fact
necessary in order to make the statements herein, in the light of
the circumstances in which they were made, not misleading (except
that I express no opinion as to financial statements, schedules and
other financial or statistical data contained in the Registration
Statement or the Prospectus or incorporated by reference therein).
32
7. The Registration Statement has become effective under
the Act and, to the best of my knowledge, no order suspending the
effectiveness of the Registration Statement has been issued and no
proceeding for that purpose has been instituted or is threatened,
pending or contemplated.
8. I have reviewed all contracts, instruments or other
documents referred to in the Registration Statement and the
Prospectus and such contracts or other documents are fairly
summarized or disclosed therein, and filed as exhibits thereto as
required, and, after due inquiry, I do not know of any contracts,
instruments or other documents required to be so summarized or
disclosed or filed or required to be filed under the Exchange Act
if upon such filing they would be incorporated, in whole or in
part, by reference therein which have not been so summarized or
disclosed or filed.
9. All descriptions in the Prospectus of statutes,
regulations or legal or governmental proceedings are accurate and
fairly present the information required to be shown.
10. The Company has full corporate power and authority
to enter into the Agreement, and the Agreement has been duly
authorized, executed and delivered by the Company, is a valid and
binding agreement of the Company and, except for the
indemnification and contribution provisions thereof as to which I
express no opinion and assuming, with your permission, that the
provisions of New York law (under which the Agreement is governed)
are identical in all respects to those of South Carolina law, is
enforceable in accordance with its terms, subject as to
enforceability to applicable bankruptcy, insolvency, reorganization
or other laws of general applicability relating to or affecting
creditors' rights generally and by general equitable principles.
11. The execution and delivery of the Agreement by the
Company, the consummation by the Company of the transactions
therein contemplated and the compliance by the Company with the
terms of the Agreement do not and will not result in the creation
or imposition of any lien, charge or encumbrance upon any of the
assets of the Company or any of its subsidiaries pursuant to the
terms or provisions of, or result in a breach or violation of any
of the terms or provisions of, or constitute a default or result in
the acceleration of any obligation under, the articles of incorpo-
ration or by-laws of the Company or any of its subsidiaries, any
indenture, mortgage, deed of trust, voting trust agreement, loan
agreement, bond, debenture, note agreement or other evidence of
indebtedness, lease, contract or other agreement or instrument
known to me to which the Company or any of its subsidiaries is a
party or by which it or any of its properties is bound or affected,
or any judgment, ruling, decree, order, statute, rule or regulation
of any court or other governmental agency or body applicable to the
business or properties of the Company or any of its subsidiaries
(except that I express no opinion as to the securities or Blue Sky
laws of any jurisdiction other than the United States) except for
liens, charges, encumbrances, breaches, violations, defaults or
conflicts which would not reasonably be expected to have a
materially adverse effect on the business, properties, business
prospects, condition (financial or otherwise) or results of
operations of the Company and its subsidiaries considered as one
enterprise.
12. Delivery of certificates for the Shares will
transfer valid and marketable title thereto to each Underwriter
that has purchased such Shares in good faith and I am not aware,
after due inquiry, of any adverse claim with respect thereto, and,
assuming the Underwriters have taken no action to create any lien,
encumbrance or claim with respect to the Shares, such Shares are
free and clear of all liens, encumbrances and claims.
33
13. I know of no actions, suits or proceedings pending
or threatened against or affecting the Company or any of its
subsidiaries or the business, properties, business prospects,
condition (financial or otherwise) or results of operations of the
Company or any of its subsidiaries, or any of their respective
officers in their capacities as such, before or by any Federal or
state court, commission, regulatory body, administrative agency or
other governmental body, wherein an unfavorable ruling, decision or
finding would be reasonably expected to have a materially adverse
effect on the business, properties, business prospects, condition
(financial or otherwise) or results of operations of the Company
and its subsidiaries considered as one enterprise, except as set
forth in or contemplated by the Registration Statement and the
Prospectus.
14. To the best of my knowledge, neither the Company nor
any of its subsidiaries is in violation of its articles of
incorporation, by-laws or other charter documents or in default
(nor has an event occurred which with notice or lapse of time or
both would constitute a default or acceleration) in the performance
of any obligation, agreement or condition contained in any
indenture, mortgage, deed of trust, voting trust agreement, loan
agreement, bond, debenture, note agreement or other evidence of
indebtedness, lease, contract or other agreement or instrument
known to me to which the Company or any of its subsidiaries is a
party or by which it or its properties is bound or affected, except
for defaults which are not reasonably expected to have a
materially adverse effect on the business, properties,
business prospects, condition (financial or otherwise) or results
of operations of the Company and its subsidiaries considered as one
enterprise, and neither the Company nor any of its subsidiaries is
in violation of any judgment, ruling, decree, order, franchise,
license or permit known to me or any statute, rule
or regulation of any court or other governmental agency or body
applicable to the business or properties of the Company or any of
its subsidiaries, which violation or default would be reasonably
expected to have a materially adverse effect on the business,
properties, business prospects, condition (financial or otherwise)
or results of operations of the Company or any of its subsidiaries
considered as one enterprise.
15. The Company does not own any shares of capital
stock of a "public utility company" or a "holding company" within
the meaning of the Public Utility Holding Company Act of 1935, as
amended, and is not a "holding company" or a "subsidiary " of a
"registered holding company" within the meaning of such Act.
In rendering this opinion, such counsel may rely upon the
representations contained in the Underwriting Agreement, upon
certificates of state officials as to the Company's good standing,
and upon certificates of officers of the Company as to matters of
fact relevant to this opinion.
34
Exhibit B
Form of Opinion of
McNair Law Firm, P.A.,
Counsel to the Company
1. The Company is a corporation duly incorporated,
validly existing and in good standing under the laws of the
jurisdiction of its incorporation, is duly licensed or qualified to
do business and is in good standing as a foreign corporation under
the laws of each jurisdiction which requires such license or
qualification wherein it owns or leases material properties or
conducts material business, has full power and authority to conduct
all the activities conducted by it, to own or lease all the assets
owned or leased by it and to conduct its business as described in
the Registration Statement or the Prospectus.
2. The Shares when paid for by the Underwriters in
accordance with the terms of the Agreement, will be duly
authorized, validly issued, fully paid and nonassessable and will
not be subject to any preemptive or similar right.
3. The authorized and outstanding capital stock of the
Company is as set forth in the Registration Statement and the
Prospectus except to the extent that shares of the Company's
preferred stock have been purchased or redeemed by operation or
mandatory sinking fund provisions. The description of the Shares
contained in the Prospectus conforms to the terms thereof contained
in the Company's articles of incorporation.
4. The Registration Statement and the Prospectus comply,
and any document incorporated by reference into the Prospectus at
the time it was filed complied, in all material respects as to form
with the requirements of the Act, the Exchange Act, the Exchange
Act Rules and Regulations and the Rules and Regulations (except
that we express no opinion as to financial statements, schedules
and other financial and statistical data contained in the Regis-
tration Statement or the Prospectus or incorporated by reference
therein).
5. We have participated in the preparation of the
Registration Statement and the Prospectus and nothing has come to
our attention which has caused us to believe that, both as of the
Effective Date and as of the Closing Date, the Registration State-
ment, or any amendment thereto, contained or contains any untrue
statement of a material fact or omitted or omits to state a
material fact required to be stated therein or necessary to make
the statements therein not misleading or that any Prospectus or any
amendment or supplement thereto including any documents
incorporated by reference into the Prospectus, at the time such
Prospectus was issued, at the time any such amended or supplemented
Prospectus was issued, at the Closing Date, contained or contains
any untrue statement of a material fact or omitted or omits to
state a material fact necessary in order to make the statements
therein, in the light of the circumstances in which they were made,
not misleading (except that we express no opinion as to
financial statements, schedules and other financial or statistical
data contained in the Registration Statement or the Prospectus or
incorporated by reference therein).
6. The Registration Statement has become effective under
the Act and, to the best of our knowledge, no order suspending the
effectiveness of the Registration Statement has been issued and no
proceeding for that purpose has been instituted or is threatened,
pending or contemplated.
35
7. The Company has full corporate power and authority to
enter into the Agreement, and the Agreement has been duly
authorized, executed and delivered by the Company.
8. The execution and delivery of the Agreement by the
Company, the consummation by the Company of the transactions
therein contemplated and the compliance by the Company with the
terms of the Agreement do not and will not result in the creation
or imposition of any lien, charge or encumbrance upon any of the
assets of the Company pursuant to the terms or provisions of, or
result in a breach or violation of any of the terms or provisions
of, or constitute a default or result in the acceleration of any
obligation under, the articles of incorporation or by-laws of the
Company, any indenture, mortgage, deed of trust, voting trust
agreement, loan agreement, bond, debenture, note agreement or other
evidence of indebtedness, lease, contract or other agreement or
instrument known to us to which the Company is a party or by which
it or any of its property is bound or affected, or any judgment,
ruling, decree, order, statute, rule or regulation of any court or
other governmental agency or body applicable to the business or
properties of the Company (except that we express no opinion in
this paragraph as to Federal securities laws (certain aspects of
which are addressed elsewhere in this opinion) or Blue Sky laws of
any jurisdiction) except for liens, charges, encumbrances,
breaches, violations, defaults or conflicts which are not
reasonably expected to have a materially adverse effect on the
business, properties, business prospects, condition (financial or
otherwise) or results of operations of the Company enterprise.
9. The Company does not own any shares of capital stock
of a "public utility company" or a "holding company" within the
meaning of the Public Utility Holding Company Act of 1935, as
amended, and is not a "holding company" or a "subsidiary " of a
"registered holding company" within the meaning of such Act.
In rendering the foregoing opinion, counsel may rely, to the
extent they deem such reliance proper, on the opinions (in form and
substance reasonably satisfactory to Underwriters' counsel) of
other counsel reasonably acceptable to Underwriters' counsel as to
matters governed by the laws of jurisdictions other than the United
States and the State of South Carolina, and as to matters of fact,
upon certificates of officers of the Company and of government
officials; provided that such counsel shall state that the opinion
of any other counsel is in form satisfactory to such counsel and,
in such counsel's opinion, such counsel and the Representative are
justified in relying on such opinions of other counsel. Copies of
any such opinions shall be furnished to counsel to the Underwriters
on the Closing Date.
36